South Dakota Government Blog by Bob Mercer

Monthly Archives: April 2016

Three seats on the board of trustees for the South Dakota Retirement System are up for election, but only one needs an election.

Unopposed for re-election is Louise Loban of Volga, a 32-year employee of South Dakota State University. She is the assistant director for human resources at SDSU. She holds a Board of Regents employee seat on the SDRS board.

There’s also no contest for the school boards seat. Dave Merrill of Plankinton didn’t seek re-election to his local school board, making him ineligible to seek re-election on the SDRS board. Kathy Greeneway of Yankton is unopposed for the vacancy. In addition to two terms (and now starting a third) on the Yankton school board, she is a certified financial planner with Raymond James Financial Services at First Dakota National Bank in Yankton.

The contest is for a state employees seat on the SDRS board.

The incumbent is Eric Stroeder of Mobridge. He has worked for the state Department of Transportation since 1991 and is the engineering supervisor at Mobridge. He has served 12 years on the SDRS board. He won re-election two weeks ago to the Mobridge school board. He was leader for the Associated School Boards of South Dakota during the past year and was part of the push for the sales-tax increase by the Legislature.

Challenging for the seat is Rachel Hearn of Pierre. She is a certified public accountant and is the audit director for the state Revenue Department. She is president of the Pierre Players Community Theater.

Ballots are in the hands of SDRS members who can vote for the state employee seat. Last spring none of the three seats up for election was contested.

In an opinion Thursday, the South Dakota Supreme Court dealt with the question of a fair trial for a child pornography suspect; specifically, if a portion of the trial was closed, or not, and if it was closed, was it a fair trial? The justices previously issued a certificate of probable cause on the question. Today, in Riley v. Young, the high court ruled 5-0 against the defendant’s claim of an unfair trial and ineffective counsel. But the opinion, written by Justice Steve Zinter, noted the need for South Dakota’s state courts to conduct habeus corpus proceedings (which determine whether an arrest or imprisonment was legal) with greater procedural formality. Specifically, the opinion stated:

“…a reoccurring problem in filing documents and processing habeas corpus actions. The only record of this habeas proceeding is found in Riley’s criminal file. It appears that his
application for habeas corpus was placed in his criminal file along with the order
dismissing his application. There is also no indication in that record that the State
was notified of the application. The State did not file a return or a motion to dismiss. We reiterate that “habeas proceedings are separate civil actions, they should be filed as separate civil actions[,]” and they should be processed as a civil case. State v. Pentecost, 2015 S.D. 71, ¶ 4 n.1, 868 N.W.2d 590, 592 n.1. These procedural irregularities should not continue.”

As to what happened in the courtroom of Circuit Judge Jeff Davis in Custer County in April of 2012, the prosecutor in the case asked for the trial to be temporarily closed while a video was to be shown. Aside from experts, the one civilian in the courtroom was a person connected to the man on trial, James Duane Riley. His side said that person could leave or stay. The judge, evidently as a matter of expediency, didn’t rule on the closure motion and let the video be shown. The jury eventually found the Hermosa man, who was 68 at the time, guilty on one felony count of possession of child pornography and failed to reach a decision on a second felony count. Riley was sentenced to eight years. Davis, according to The Custer County Chronicle account of the sentencing, said child pornography was “scurrilous” and added, “It’s the scourge of the Earth.” Riley later claimed he didn’t receive a fair trial because of the handling of this video matter.

The South Dakota Supreme Court last week released its decision in a case involving one hunter threatening another hunter. The case Erickson v. Earley involved a protection order received by Tyler Erickson against Austin Earley from Circuit Judge Vincent Foley in Brookings County circuit court. The judge found Earley was threatening Erickson while Erickson was scouting for deer during the off-season months on a farm where Erickson had permission to hunt and Earley didn’t have permission. The Supreme Court upheld the circuit judge’s finding that Earley both harassed and threatened Erickson on three occasions at the farm over a period of months and later by telephone starting in February 2015.

Earley contended the protection order violated his First Amendment right to free speech. The Supreme Court decision noted that South Dakota prohibits stalking and the circuit judge found Earley’s actions were stalking and that his speech toward Erickson was harassment. The Supreme Court recalled its 2003 decision in which the justices found “freedom of expression does not include threatening or harassing conduct(.)” Justice Lori Wilbur wrote the unanimous decision in the current case.

There is an additional twist in Erickson v. Earley. The initial incident took place on the farm when Erickson went to remove two trail cameras. Hunters and other outdoor enthusiasts use trail cameras to track wildlife at specific places. This seems to be the one of the first incidents involving trail cameras in a South Dakota Supreme Court decision. The state Game, Fish and Parks Commission recently adopted rules allowing trail cameras to be kept year-round on state property, provided they are accompanied by owner identification. We could soon see trail cameras used for evidence purposes in other cases. That would open a new line of legal dispute: Does a person in the woods have an expectation of privacy? Can law enforcement use evidence gathered from a trail camera? And could law enforcement place trail cameras at public places, such as parking spots, walk-in hunting areas, boat ramps and fish-cleaning stations, for surveillance purposes?

Two of the presenters at the annual Dakota Conference on history at Augustana University last weekend were Arthur Buntin and Jean Elliott Rahja. Buntin, a retired professor at Northern State University, tracked the evolving attitudes expressed by the editorial staff in the Aberdeen American News during the years leading into World War II. Rahja, a retired teacher and a current volunteer at Dacotah Prairie Museum in Aberdeen, recalled the life of the late Peg Lamont of Aberdeen, whom Rahja said should have been a role model for all.

Rahja, Buntin and Lamont are past recipients of the Dakota Conference Award for Distinguished Contribution to the Preservation of the Cultural Heritage of South Dakota and the Northern Plains: Rahja in 2006; Buntin in 1993; and Lamont in 1975. They are parts of a strong tradition of history keeping. Rahja is shown speaking Friday afternoon to Buntin before her presentation.

When politics in South Dakota sometimes get puzzling, just think of a Terry Redlin painting. He portrayed many of the values at the core of many South Dakotans. His work spanned detailed depictions of wildlife, especially waterfowl, to romantic rural settings and, in more recent times, to small-town life’s patriotism. His death, at age 78, was announced Monday.

It might be a reach to say that his prints hang in 100,000 homes and offices throughout South Dakota, but it’s a safe guess that tens of thousands wouldn’t be an exaggeration. A summer ago I made time one weekend afternoon for an hour at the Redlin Art Center in Watertown, just west of the I-29 and U.S. 212 intersection. The best compliment I can give is this: I’ll be going again when I have the opportunity. And, true to Terry Redlin’s spirit, entrance is free.

The South Dakota Retailers Association lost one of the organization’s best political hands Tuesday. Jim Hood of Spearfish retired from lobbying for the group at legislative sessions. He turns 69 later this month. A lawyer, he served 10 years in the state House of Representatives. Those five terms ran 1983 through 1992, including the 1991-92 term as House speaker.

His time as a lobbyist for the retailers began in 1998. He worked with Jerry Wheeler, then the executive director for the retailers, in helping solidify the organization into one of the most effective grassroots groups at the Legislature and a respected voice for the main streets of South Dakota. Jim continued in his role when Shawn Lyons succeeded Wheeler. (Hood and Wheeler also shared the bond of brothers-in-law who married bodacious Irish sisters Kathleen and Kelly Donahue.)

Jim’s client list for the 2016 session showed the breadth of his abilities and gave a glimpse into some of his quiet passions. Beside the retailers, he represented the South Dakota Municipal League, the South Dakota Library Association, Missouri River Energy Services, nurse anesthetists, chiropractors, American Civil Liberties Union and the group of South Dakotans who sought repeal of the death penalty. His ability to span so many interests spoke to what Shawn Lyons described as Jim’s “impeccable integrity.”

The retailers presented a bronze by South Dakota’s artist laureate Dale Lamphere titled “Hunkayapi” to Jim Hood on Tuesday. “In our case it means friend and part of our family. Jim was trusted counsel sought by both lawmakers and lobbyists alike. We will greatly miss him,” Lyons wrote on Facebook.

We mark the anniversary today of the 1993 state airplane crash that killed eight men including Gov. George S. Mickelson and took them from their families.

All aboard lost their lives as state pilots Ron Becker and David Hanson tried to get the plane to an Iowa landing strip with one of the two engines out because of a broken propeller hub. It crashed into a farm silo as it came out of the low clouds.

The men were returning from an economic development mission to Cincinnati regarding the John Morrell meat plant.

Joining the governor for the trip were Angus Anson of Sioux Falls, CEO for Northern States Power; David Birkeland of Sioux Falls, CEO for First Bank of South Dakota; Roger Hainje, president for Sioux Falls Development Foundation; Roland Dolly of Pierre, commissioner for the Governor’s Office of Economic Development; and Ron Reed of Pierre, the past GOED commissioner and director for the state Office of Energy Policy.

The Fighting Stallions monument next to the Capitol stands in their honor.

The latest voter-registration totals for South Dakota show gains across the chart. Through April 6, Republicans had climbed to 240,523, up from the March total of 239,046 and the highest since the pre-purge number of 243,881 on Sept. 1, 2015.

Democrats also showed some life again, totaling 167,261. That growth ends a two-year decline that began with the 2014 general election. Democrats gained 314 registered voters since the March 2, 2016, statewide tallies.

That’s only about one-fifth of the one-month gain made by Republicans, but it’s an improvement for Democrats.

Running the monthly comparisons became more complicated in the past month because the state elections office is now posting the data somewhat differently. The Constitution Party became officially recognized, and there are now 515 in that column this month. The column for registered voters who don’t affiliate with a political party or designate themselves as independents slipped to 108,506. Meanwhile another column breaks out what’s designated as “Other” for those voters who register with other political parties. The “Other” category this month shows 2,151. Roll all three of those non-Republican and non-Democratic registered voters into a single category, as was done in the past, and you’d have 111,172. That’s more than the March total of 110,077.

Taken together, the story remains mostly the same: Republicans and Independents/NPAs/Others/Constitutionalists are up considerably, again, and Democrats are still lagging, but at least headed in the right direction again.

Optimism abounds this morning after the Minnesota Twins beat the Los Angeles nee California Angels by a score of 5-4 on Friday night, ending the nine-game streak of defeats that began this baseball season. The Twins rallied three times, behind a big night of Eduardo Nunez, who kept finding ways to get on base, scoring twice and doubling in a run. The bats finally came around, with key hits at key times from Nunez, Joe Mauer, Miguel Sano, Trevor Plouffe and Byung Ho Park. Tommy Millone pitched well, giving up a run in the sixth inning when a bobble on a single by Angels catcher Carlos Perez put him on second base; he would score. The Twins rallied to take back the lead 2-1. Then Millone gave up home runs in the seventh that put the Twins behind 4-2. The Twins came right back to tie the game. The eighth saw the Twins pull ahead. That;s how the winning streak began.

The funeral is Saturday in Vermillion for Alan Clem, who was a long-time political and government professor and researcher at the University of South Dakota. He was born in Nebraska and cut his political teeth working for two U.S. congressmen from Nebraska. He joined the USD faculty in 1960. Among his students through years thereafter was Larry Pressler, who as a Republican won election to the U.S. House of Representatives and then served three terms in the U.S. Senate. My sense has always been that Professor Clem was a significant influence on a 1983 book, U.S. Senators from the Prairie, on which Pressler was author. (Amazon currently lists several copies available at $150 minimum for the hardcover and $31.70 paperback.) The book provided biographical notes and speech excerpts for South Dakota’s 23 U.S. senators to that point.

Alan Clem was listed as author of several books during his USD days. They reflected his nuts and bolts approach to elections and the politics that can influence elections. I never attended any course or seminar where he taught, but I purchased several of his works through the years. One changed how I worked on election nights. A statistic he emphasized was voter registration numbers and voter history at the precinct level in a county. Knowing the precinct numbers and history allowed an observer to see where a precinct’s results were headed, and enough precincts with results provided the basis for declaring a winner in a contest in that county. Enough county results became the basis for declaring a winner in a statewide contest. This is now common practice on election nights, but at the time in the mid-1980s that simple approach became a reliable tool for this reporter.

His style was dry. I met him a few times at various political events. I liked that he showed up to watch the action. I didn’t like that his writing seemed to heavily rely on the Sioux Falls Argus Leader, but those were in days before news websites, and like many people he appeared to overlook the news outside of the reach of the Sioux Falls newspaper. Regardless, Alan Clem was a major figure at USD; the university prepared a detailed news release a few days after his death Monday. The USD release even included some fun insights and telling quotes from two sons. I always got a kick out of the title of one of his books: “The Government We Deserve.”